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So the current question in the whole Prop 8 business is whether there will even be an appeal because the State of California doesn’t want to and the advocates for Prop 8 don’t clearly have standing. This piece by Emily Bazelon is as good a place as any to start if you want to catch up on why standing is a real question.

I’m inclined to agree with the view that there is no standing by private parties to appeal, and so if the State of California declines to appeal, that’s all she wrote – for California, anyway. That, in fact, might please both sides in the actual debate, because neither side is sure enough of how the Supreme Court might rule to be sure they want to take things that far. If Justice Kennedy were to ultimately uphold the ruling, that would mean same-sex marriage nationwide, a bigger loss for the opponents of same than losing California, while if he ultimately overturned it you’d be dealing a huge blow to the proponents of same-sex marriage. But whether or not it’s what both sides might prefer to happen, I’m inclined to think it’s the right legal conclusion.

And I don’t see why it’s an affront to our political principles. First of all, the real affront to our principles is California’s initiative system, which is a colossal failure in practice and would be predicted to be so in theory. And conservatives in particular should be appalled by the idea that republican government means government by popular initiative – certainly the Founders would be.

Denying standing to the Prop 8 proponents to appeal would not imply that a state can void an initiative simply by refusing to defend it. If an initiative passes that the state doesn’t like, and opponents with standing sue, and the state declines to defend the initiative, what happens is what happened in this very case – the proponents wind up offering a defense. And the courts ruled for the plaintiffs. In other words, the only precedent being set is that a state can void an initiative they don’t like if the District court also thinks it’s unconstitutional. And this is a bad precedent, why?

Moreover, I don’t see any particularly perverse incentives being created, because the state, in declining to appeal, is taking an electoral risk. That’s how democracy is supposed to work: elected officials make decisions, and the people hold them accountable. If the people of California don’t like the decisions that the Attorney General and Governor make, they can elect people who think differently and will make different decisions. Of course, this is an argument against initiatives as such, and I’m happy to have it construed so, but the point is that the existence of the initiative process shouldn’t deform the operation of the rest of our system of government. Think of it this way: suppose there were no initiative, but rather an act of the legislature that was struck down by the court. And the legislature simply said, “oh, well, if it’s unconstitutional then never mind” and declined to appeal or to try to pass new legislation that might pass muster. Would that mean that ordinary citizens could go out and appeal on the state’s behalf? Obviously not. So what’s the difference? There’s only a difference if the existence of the initiative process implies that the citizenry at large has become the state. Which is an obvious absurdity.

As an aside, I’m still very skeptical of the “rational basis” reasoning in the decision. Under rational basis review, it’s the burden of the plaintiffs to prove that there’s no rational basis for the law, not the burden of the defendants to prove that there is such a basis, and that’s almost impossible to prove. I think Judge Walker has basically smuggled in an intermediate level of scrutiny under false colors. And what I worry about primarily is that a precedent has been set that would allow judges in many more situations to deem laws not to have a “rational basis” because they think the state’s reasoning doesn’t make sense or the state’s facts are wrong. That having been said, as I’ve said before, I think applying such an intermediate level of scrutiny makes a great deal of sense, and would lead to a similar result. And none of this has any bearing on the question of standing to appeal.

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Thank you for consistently pointing out what an absolute travesty California’s initiative process is. Every few years Californians are inundated with nasty advertisements from advocates on both sides of issues that most people in this state don’t really care about all that much. Far nastier than this though is the fact that it actually encourages de Tocqueville’s famed “tyranny of the majority” by equating 50.1% of the population with a consensus.

But doesn’t the very word “rational” imply that there’s at least some logic and reason behind the government’s decision? For something to have a rational basis in fact, we’d expect there to be evidence and thinking. Why would a rational basis in law be any different?

If all that’s required for a “rational basis” in law is for someone to declare it to be so, then any law could pass the test simply by declaring such in its text. That would be a doctrine void of meaning.

First of all, the real affront to our principles is California’s initiative system, which is a principles is California’s initiative system, which is a colossal failure in practice and would be predicted to be so in theory. And conservatives in particular should be appalled by the idea that republican government means governm

Heh. What about Progressives? Should they be appalled?

And is an affront to california’s legal system a good thing or a bad thing?

Rational basis? There is no such thing as a rational basis for a law or any personal or governmental decision. That’s not what reason is for, and is not what reason is capable of. It’s a logical impossibility for there to be such a thing.

Decisions certainly ought to be reasonable, but they can’t be based on reason.

And, of course, for the Millmans of the world, teaching those peasants that their views do not count for as much as those of sophisticated people in big cities with graduate degrees and six figure incomes would be an extra plus. An affront to our principles? It’s a vindication of our principles!

I for one find myself quite pleased, if not positively giddy, that Judge Walker struck down the bigoted rabble with their tract homes and their Dodge Chargers and their morbidly obease children. It is even more delicious that the slobbering hoards were shown the door by an elegant, eriudite gay man. Ai Chihuahua, Paco! The irony… She burn! She burn!

And y? Believe me. It is nothing less than a taste of the future. While the uneducated, bigoted lower classes concentrait their “mental energies” on Doritos, sexting, and stock car racing, our country quietly sashays further and further down the garden path to a new American reality: perpetual dominance by an educated, urbane, tasteful elite. I can hardly wait. This recent set back for the just-plain-folks crowd is just the latest stepping stone. One day Clyde and Clem are going to look up from their bowl of Beef-a-Roni to find they are being governed by a slim, handsome, well-spoken black man and a fiesty, Armani-clad grandma from California and, by gum, they are going to just about poop their pants.

Also worth noting: California’s ballot initiative process was responsible for what may have been the most significant piece of “legislation” in Califonia in the last 50 years—the Prop 13 “tax revolt” ofvthe mid-70s.
Same Sex Marriage is a symptom. Prop 8 is a topical ointment sold in the next ilse over from the Beef-o-Roni. There were four cases of Chef Boyardee on this tub before I left St. Croix; now there are only two.

You write that if the Prop 8 proponents don’t have standing to appeal, “the only precedent being set is that a state can void an initiative they don’t like if the District court also thinks it’s unconstitutional.” But this isn’t right. If they don’t have standing to appeal, they also lack standing to participate in the district court. And if the state refuses to defend the law, and no private party has standing to defend it, then any plaintiff with standing will win by default judgment — the district court won’t even be able to get to the merits.

Please don’t rely on Emily Bazelon for legal analysis. She rarely even reads the stuff she writes about.

I don’t think you are likely to get your preferred rule. Most analysts agree that if the proponents don’t have standing to appeal, they don’t have standing to appear in the district court, so it’s not accurate to say that in the future, we can look forward to district court review, but no appeal, of initiatives that the state government refuses to defend.

Bob: I’m not a lawyer, but I’m not sure that’s right; I think the requirements for standing to join the defense are different than to initiate a suit or appeal – there’s been a bunch of discussion on this point over at Volokh but it quickly got too detailed for me to really have an opinion.

Whoops! Should have waited for J Mann before commenting. Well, this I indeed beyond my area of knowledge, so I should just say that if it’s true, then any outcome is perverse. Either initiatives can be “struck down” by the state at any time simply by refusing to defend in court, or initiatives effectively remove the state entirely from the process, and by definition give every citizen standing in situations where, if the law in question were legislatively enacted, they would not have standing. Do I have that right? My rule may not be legally correct, but it makes more sense to me than either of those alternatives.

What if the citizens of California decide they’ve had enough of the inititative system? They could amend their constitution by initiative. That would be cool, right. If I were still a Californian I would be working on this right now. I would call it Proposition No Mas. Or Proposition Final Irony.

Thanks. I don’t have any idea whether the Prop 8 backers actually have standing. It’s an interesting problem, and the law of standing is exceptionally talmudic, so the court either (1) has a thorny issue on its hands or (2) can just decide on the preferred outcome.

There’s a related question – if the legislature and the attorney general’s office are in different parties, and the AG just declines to defend a normal legislative law, does that mean that the law is unconstitutional by default?

Progressivism doesn’t mean what its modern-day proponents want people to think it means.

BTW, now that we’ve seen some of the attitudes expressed here towards government of the people, by the people, and for the people, I presume we can all agree that single-sex marriage isn’t about Love, Sweet Marital Love. Instead it’s about class conflict and hatred of the bourgeois and their bourgeois values.

The Reticulator: “BTW, now that we’ve seen some of the attitudes expressed here towards government of the people, by the people, and for the people, I presume we can all agree that single-sex marriage isn’t about Love, Sweet Marital Love. Instead it’s about class conflict and hatred of the bourgeois and their bourgeois values.”

This might be true, but perhaps not in the way you think it is true.
I’m not at all sure that bourgeois values are all that opposed to SSM anymore. I’d wager it is more the conservative lower class that mostly opposes it these days. Bourgeoisie is probably divided 50-50, just like the country as a whole seems to be.

After all, I’m pretty certain that most, if not all, of the commenters on this undoubtedly middle-brow (and I don’t mean this in a disparaging sense) forum are members of the bourgeoisie (and I don’t mean this in a disparaging sense, either).

Of course, I guess you can always claim they represent the “self-hating” bourgeoisie, but if SSM is your yardstick for that, you seem to have a rather lousy yardstick.

And here is some data to back all this up:
“The poll released today by the Public Policy Institute of California, though, finds that Prop 8’s strongest support came not from African-Americans but from white conservatives, born-again Christians, and low-income voters. Party affiliation, age, and religion played a far greater role in determining the measure’s final outcome than race, the poll finds. More than 3 in 4 Republicans voted to ban same-sex marriage in the state, as did 85 percent of evangelical voters. Only 43 percent of all voters between the ages of 18 and 34 supported the ban, while 56 percent of those over 55 did.

Voters on the coast generally supported same-sex marriage and the more culturally conservative inland areas of the state voted against it, but ultimately it was income and education—much more than race—that determined voters’ preferences. While only 43 percent of college graduates voted to ban gay marriage, 69 percent of voters with a high school degree or less voted for the proposition. Nearly 2 in 3 voters making less than $40,000 a year voted for Prop 8, while 55 percent of those making $80,000 or more voted against it.”